Last week David Kappos addressed the IPO annual meeting in Chicago, Illinois. Kappos’ remarks were varied and really set a new tone for the future of the USPTO under his watch. Kappos continued the theme he has already established in differentiating how the USPTO will run under his regime, as compared to how it ran under the previous regime. Specifically, Kappos promises to cut pendency across the board, to develop a count system for patent examiners that does not require an endless stream of RCEs and he wants a patent system that does not favor (or disfavor) any particular technology over others. On the negative side, Kappos was the bearer of bad news with respect to the fiscal crisis facing the Patent Office, and saying that there will be no new hires during 2010 and likely no way to dig into the backlog of pending cases. He also announced his support for patent reform, which will get many shaking in their boots. It is hard to argue with what he says, namely that it has been long enough without any overhaul of the patent system. I think everyone will likely agree with that statement, but the devil will be in the details. In any event, the agenda set out by Kappos is ambitious. Now we have to see where it leads and whether it will result in a truly better patent system.
There were a number of comments from the Kappos speech that caught my attention, so perhaps the best way to handle them is to go step by step, pulling out quotes and offering some commentary.
1. “We’re going to have a count system that helps everyone get to the point without requiring two or three RCEs.”
COMMENTARY: This is certainly a welcome statement, and it is great to have a leader at the PTO who realizes what many examiners are doing. Patent examiners simply do not have enough time to work on patent applications, and one way to process workflow is to do what you can in the limited amount of time given and then force RCE after RCE. Cutting down on useless RCEs would definitely create significant improvements, should pay dividends with respect to cutting down the time an applicant has to wait to get an issued patent and should create a better working relationship between the patent bar and patent examiners. There is nothing more frustrating than being forced into an RCE when you know that it is as a result of an examiner not being given enough time and the examiner having to figure out ways to meet their quota goals. Sadly, however, Kappos says he wants to prevent “two or three RCEs,” which could well mean that what we will see is an RCE in every case. I would much rather a system be set up that would see an RCE as unusual and not the norm. Perhaps I am reading to much into this quote, but this is something to keep an eye on.
2. “We are working on new programs to help cut pendency across the board, such as one that would allow an applicant to select an application to advance in the queue in exchange for each application they withdraw before substantive examination.”
COMMENTARY: This is certainly an outside the box way to approach things, and perhaps that is all the USPTO can do given budget limitations. I will reserve judgment until I see and/or hear the details. I can, however, envision abuses. If you can select an application to drop and an application to advance to the point in line where the dropped application was, wouldn’t this create more patent applications and a greater backlog? It would seem to me that inventive corporations would do well to file numerous applications, many of which might be on specious inventions just to have an application acting as a placeholder for a “real” invention that may come later and which you might want to advance out of turn. Such a system could significantly benefit large, well-funded companies at the detriment of independent inventors and small businesses who do not have the resources to file placeholder applications. Again, this is something to keep an eye on as additional details are available.
3. “I won’t stand up here charts and tell you how perfect our quality is. I know that quality is not where it should be, even if the agency’s past quality standards indicated otherwise.”
COMMENTARY: Amen! Finally, someone in a position of power who understands that the “quality” metrics set up by the previous regime were ridiculous. The old metrics had nothing to do with quality. Quality is low and the fact that the Office was able to maintain such low quality while meeting and exceeding their goals every year shows that the metrics used to gauge quality were meaningless. Such Soviet-era metrics (i.e., objective criteria that can be met without consequence for whether the criteria is meaningful) need to be a thing of the past, and I think they will be disposed of under Kappos.
4. “We’re going to take a run at developing a nationwide work force, which will allow us to hire the best candidates across the country, retain valuable employees, and control real estate costs associated with workforce expansion.”
COMMENTARY: I have been writing for years that Regional Patent Offices need to be placed on the table because there are only so many talented engineers and scientists who are both interested in and willing to move to Northern Virginia to work for the Patent Office as Patent Examiners. Perhaps Regional Patent Offices is not what Kappos is referring to, but the fact that he recognizes that a national work force is necessary is a good sign indeed. As only a government body can do, the minute the Alexandria Campus opened it was already under sized and over capacity. How you could build a brand new campus that isn’t big enough demonstrates a special kind of ineptitude reserved only for government, and that is what Kappos has inherited. Whatever he does here will likely be a step in the right direction as long as he is mindful that work-from-home prevents junior examiners from the mentoring they require.
5. “In the policy arena,we are taking broad policy leadership positions aimed at increasing the role IP plays in accelerating innovation across ALL business models and industries. There is to be no prejudice for or against certain technologies. Our mission is U.S. policy leadership on a global scale to accelerate innovation, and products and services rooted in innovation.”
COMMENTARY: It is hard to know whether this relates to anything in particular, or is pie-in-the-sky language. To the extent that the emphasis of “ALL,” which is capitalized in the original text, is meaningful I suspect it relates to how the Patent Office treated inventions in class 705 under the Dudas Administration. Inventions in class 705 were treated to far more scrutiny than in any other area of invention, and there is little justification under the law to provide one particular category of invention different than others. I am not suggesting that inventions are entitled to equal protection rights, but rather that inventors are entitled to be treated equally. Discriminating against inventors and forcing those with inventions in class 705 to wait 7 to 10 years, which was the norm until In re Bilski, is unjustified and ridiculous. The law says inventors are entitled to a patent “unless,” and that should mean something in application, not just in spirit.
6. “You can expect we will be strongly in favor of reform now. The patent system is a key driver of innovation and prosperity for our country. Innovation industries create jobs, which means a well-functioning patent system creates jobs. It has been too long since the U.S. patent system was overhauled.”
COMMENTARY: Yikes! This could mean any number of things. We all know that while patent reform appears to be dead presently, it will come back once again in some new form. The new form of patent reform over the years typically looks like the old patent reform that couldn’t get through due to it being objectionable and opposed by an array of interests. To the extent we have a meaningful rethinking and start from scratch I am all for it. If we get the same, tired and antagonistic reform proposals next time around this would be particularly disheartening.
7. “[N]o hiring in 2010, so the size of the agency will decrease. It means no IT improvements, no overtime and probably no progress in cutting into the backlog.”
COMMENTARY: Well, Kappos’ speech wasn’t all good news. How he will be able to deliver on any of his promises is doubtful, at least in 2010. Perhaps the best we can hope for in 2010 is the laying of the foundation that will pay dividends beginning in fiscal year 2011. The sad reality is that without hiring and through attrition the Patent Office will decrease in size during fiscal year 2010, and that means less work. Lets hope it also doesn’t lead to broken promises and an even more turmoil for American innovators.